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Supreme Court Upholds
Public entity Nonliability

Hard cases make bad law.” This legal maxim was tested in a recent case with a sympathetic plaintiff and potentially disastrous consequences for municipalities, Polzo v. County of Essex.1

Just after noon on August 18, 2001, Mathi Kahn-Polzo was riding her bicycle with a group of bicyclists traveling downhill on the westbound shoulder of Parsonage Hill Road in Millburn Township, Essex County. Parsonage Hill Road is a county road. Kahn-Polzo was traveling behind a pack of bicyclists at about 15 m.p.h. when her bicycle traveled over a circular depression in the shoulder that was about two feet in diameter and approximately one and one half inches deep. She lost control of her bicycle, fell to the pavement and, although she was wearing a helmet, suffered a catastrophic head injury which resulted in her death 26 days later. In September 2002, her husband, Donald Polzo, filed a lawsuit against, among others, Essex County, claiming that the depression caused his wife’s death and that the County was, therefore, liable.

The case had a long, tortuous path through the courts. Originally, the plaintiff’s claim was dismissed by the trial court, which held that even if the depression constituted a “dangerous condition,” there was insufficient evidence from which a reasonable jury could conclude that the County acted in a palpably unreasonable manner. On appeal, the Appellate Division2 reversed, holding that the issues of whether the County was on notice and whether the County acted in a palpably unreasonable manner, were for a jury to decide. The Supreme Court reversed the Appellate Division, holding that plaintiff’s expert’s report which concluded that the County had sufficient notice was an improper “net opinion,” and that in the absence of evidence that the condition had existed for long enough for the County to have been on constructive notice, summary judgment would be proper. The Supreme Court remanded the case back to the trial court to review the record and possibly supplement it, to determine whether plaintiff’s proofs were sufficient for the threshold issue of constructive notice and whether plaintiff’s proofs were sufficient to meet the other requirements contained in the New Jersey Tort Claims Act (TCA)3 pertaining to liability of public entities for injuries arising out of the condition of public property.

In the second go-round, the trial court again entered summary judgment of dismissal in favor of the County, and the Appellate Division again reversed, this time holding that a jury question was presented as to whether the depression constituted a dangerous condition that was created by the County’s failure to have a formal “inspection program” in place. The Appellate Division concluded that there was insufficient evidence of actual or constructive notice of the depression on the part of the County, but that in the absence of a routine inspection program a jury could reasonably conclude that failure to have a program calling for routine inspections of the roadway and shoulder could be deemed to have created the condition, and that the failure to have such a program was palpably unreasonable.

Concerned that the Appellate Division’s decision created a new basis of liability which would adversely affect municipalities and which would impose a duty on the part of already hard-pressed municipalities to institute inspection programs for all municipal properties, including roadways, parking areas, lands and buildings, the New Jersey League of Municipalities joined Essex County in requesting that the Supreme Court grant certification and review the Appellate Division decision.

The League argued specifically that the Appellate Division incorrectly equated not discovering a dangerous condition with creating a dangerous condition and that a judicially imposed requirement for routine inspection programs of all public property would expand public entity liability in violation in the TCA and require unfunded expenditures of government resources.
Oral argument took place before the New Jersey Supreme Court on September 26, 2011. Justice LaVecchia and Judge Wefing did not participate in the oral argument, giving us the impression that the New Jersey Supreme Court was probably going to issue a unanimous opinion.

On January 18, 2012 the New Jersey Supreme Court did issue a unanimous decision that was written by Justice Albin. Even though the Supreme Court accepted the proposition that the depression on the shoulder of the roadway caused Ms. Polzo’s accident, the Supreme Court ruled that the County of Essex could not be found to have “created” a dangerous condition by having no routine inspection program in place to discover road surface defects. If failing to discover a dangerous defect were the same as creating one, the Legislature would have had no need to provide for liability based on actual or constructive notice.

Moreover, the New Jersey Supreme Court found that the County of Essex did have a program for detecting and repairing road surface defects, even if it was less than ideal. Just five weeks before the accident, the County of Essex had inspected all 2.6 miles of Parsonage Hill Road and filled potholes in the process. The New Jersey Supreme Court could not find that the absence of a more systematic program violated the TCA, particularly when the plaintiff has not provided any recognized standard of care that demands otherwise.

In deciding whether the County of Essex was on notice of a dangerous condition on the roadway shoulder, the Court considered basic principles of law governing roadways. The Motor Vehicle code provides that a “roadway” is the portion of highway generally used for vehicular travel; the “shoulder” borders the roadway and is for emergency use; and “vehicles” are not bicycles.

icyclists are directed to ride as near to the right side of the road as practicable. While they may be inclined to ride on the shoulder, they have no special privileges if they do. Bicyclists on roadways confront inherent dangers not faced by motor vehicle operators, such as destabilization by a stone or pothole. Public entities do not have the ability or resources to remove all dangers specific to bicycles.

The Supreme Court stated that even assuming that the depression was one-and-one-half inches deep when Parsonage Hill Road was inspected five weeks before the accident and that it would have been obvious to the naked eye, still it would not have been obvious to the reasonable observer that it presented a dangerous condition as defined in the TCA.

Even if the County had noticed that the depression was a dangerous condition, a reasonable jury could not find that the failure to repair it was “palpably unreasonable. ”4 In sum, even when the issue is viewed favorably to the plaintiff, the Court cannot conclude that the County acted in a palpably unreasonable manner by failing to protect against the depression before the tragic accident in this case.

While having a regular inspection program is certainly worthwhile and prudent, as a result of this ruling, public entities cannot be second-guessed on the question of whether or not to have such a program.

Jeffrey B. Beacham is a partner in McGivney & Kluger, Esqs. in Florham Park. He represents municipalities in tort cases. He is a certified trial attorney and he represented the County of Essex in this case and argued the case before the New Jersey Supreme Court.

Robert F. Renaud is a partner in Palumbo & Renaud, Esqs., in Cranford. He is a certified civil trial attorney and represents public entities in tort and civil rights claims and other matters. He lectures frequently on these subjects and represented the League of Municipalities in this case.